M/S. Rajmoti Petroleum vs Indian Oil Corporation Ltd
2014 Latest Caselaw 175 Bom

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                                                                                        ARBP1080.11



               IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                    
                    ORDINARY ORIGINAL CIVIL JURISDICTION
                    ARBITRATION PETITION NO. 1080 OF 2011




                                                            
    M/s.Rajmoti Petroleum,                          )
    Opp.Ambuja Cement Ltd., Kodinar,                )
    Veraval, NH 8E, Kaduasan,                       )




                                                           
    Taluka Kodinar, Gujarat State                   )    ..... Petitioner

                              VERSUS




                                               
    Indian Oil Corporation Ltd.,          )
    to be served through         ig       )
    Sr.Law Manager & Constituted Attorney )
    IOCL Ltd., Gujarat State,             )
    Office at 204-304, Shikhar Complex,   )
                               
    Nr.Mithakhali Six Roads, Navrangpura, )
    Ahmedabad - 09                        )              ..... Respondent

    Mr.Sujay Kantawala, i/b. Ms.Smita Gaidhani for the Petitioner.
            


    Mr.Chirag Mody, a/w. Mr.Ashok Purohit, i/b. Ashok Purohit & CO. for the
         



    Respondent.
                                     CORAM : R.D. DHANUKA, J.
                                     RESERVED ON : 11th DECEMBER, 2014





                                     PRONOUNCED ON : 23rd DECEMBER , 2014

    JUDGMENT

By this petition filed under section 34 of the Arbitration and Conciliation

Act, 1996 (for short 'the said Arbitration Act') the petitioner has impugned the arbitral award dated 27th July, 2011 made by the learned arbitrator directing the petitioner to pay a sum of Rs.56,87,400/- with interest at the rate of 8% per annum w.e.f 20th June, 2001 till the date of realisation to the respondent herein. Some of the relevant facts for the purpose of deciding this petition are as under :-

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2. The petitioner was original respondent in the arbitration proceedings

whereas the respondent was the original claimant. By an agreement dated 11 th December, 1997 the respondent appointed the petitioner as Dealer Operated Lube

Depot Operator at Diu for the period of two years from October, 1997. The said agreement was thereafter extended till 31st March, 2000 on the terms and conditions contained in agreement dated 11th December, 1997.

3. Under clause 8 of the said agreement the respondent had agreed to advise

names of the customers with monetary limits upto which cheques could be

accepted by the petitioner from such customers. It was provided that all sales ex- godown will be strictly against advance payment by cheques/demand drafts. It was

made clear that supplies to other customers will be only against demand drafts in advance for the full value. The petitioner was required to maintain necessary customer cards indicating the receipt of payment and the supplies made against

such payments. Clause 8 of the said agreement is extracted as under :-

8. All sales ex-godown will be strictly against advance payment by cheques/DDs. The Divisional Office of the Corporation will advise the names of the customers with the monetary limits upto which the cheques can be accepted from

the customers. Supplies to other customers will be only against DDs in advance for the full value. The necessary customer cards indicating the receipt of money and the supply against them will be maintained by the Contractor.

4. Under clause 9 of the said agreement, all the cheques/DDs received during the day were required to be deposited in the account of the respondent with the State bank of India same day or at the most next day. It was provided that in no case, there should be delay in depositing the cheques/DDs. Under clause 14 of the said agreement the respondent had agreed to pay to the petitioner various charges

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towards handling/operating/rental of lube godown. Clause 17 of the said

agreement provided that the contractor shall adhere to the code of discipline laid by the respondent and Government in regard to handling of POL products and its said

product. The petitioner had agreed to indemnify the respondent for any loss caused to the respondent on account of any breach of the terms by the contractor or any reason whatsoever.

5. Clause 24 of the said agreement provides for adjudication of the disputes or

differences by arbitration. The dispute or differences were agreed to be referred to the sole arbitration of the Director (Marketing) of the respondent or of some officer

of the respondent who could be nominated by the Director (Marketing). It was provided under the said clause that it was known to the parties to the agreement

that the arbitrator so appointed was a shareholder and employee of the respondent. It was provided that no person other than the Director (Marketing) or a person nominated by such Director (Marketing) of the Corporation shall act as arbitrator.

6. It was the case of the respondent that on 27th January 2000 the officials of the respondent had carried out inspection of the office and godown of the petitioner

and found that there was a shortage of 92 barrels from the total stock. The cost of such 92 barrels was Rs.8,15,834.33. It was also noticed by the respondent that the petitioner had extended unauthorised credit of Rs.3,15,810.67 in November 1999

to M/s.Jai Murlidhar Petroleum. It was the case of the respondent that the petitioner had sold lubricants worth Rs.4,94,638/- to M/s.Krishna Enterprise on credit in October 1999 wihtout any authority/sanction from the respondent. The petitioner made payment of Rs.11,31,645/- comprising of Rs.8,15,834.33 towards the cost of 92 barrels and Rs.3,15,810.67 on account of unauthorised credit granted to M/s.Jai Murlidhar Petroleum to the respondent.

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7. It was the case of the respondent that it was found by them that though no

cheques of the parties were received by the petitioner, it was shown to have been deposited in the collection account of the respondent with State Bank of India

Wadala. The cheques in respect of such parties according to the respondent were for the sum of Rs.1,11,31,203.56. The respondent thereafter sought confirmation from their bankers and were informed that those amounts were not credited in the

collection account of the respondent.

8. It was also the case of the respondent that the respondent had granted credit

of Rs.25 lacs valid till 31st March 1999 in favour of M/s.Jai Murlidhar Petroleum which credit was never extended or renewed. According to the respondent, the

petitioner had supplied product worth Rs.3,15,810.67 on credit in November 1999 without any authority. According to the respondent the petitioner had supplied lubricants worth Rs.1,10,87,197/- to M/s.Jai Murlidhar Petroleum on credit without

any authority which was in violation of clause No.8 of the agreement dated 13 th

November, 1997. According to the respondent, the petitioner did not dispute that they had supplied lubricants valued at Rs.1,10,87,197/- to M/s.Jai Murlidhar Petroleum. Even M/s.Jai Murlidhar Petroleum vide their letter dated 4 th May, 2000

had confirmed that they had received the lubricants from the petitioner.

9. The respondent encashed a bank guarantee of Rs.12 lacs which was given by

the petitioner to the respondent under the said agreement dated 13 th November, 1997. The respondent recovered a sum of Rs. 25 lacs from M/s.Jai Murlidhar Petroleum. According to the respondent a sum of Rs.16,99,197/- was available with the respondent which was payable as incentives to M/s.Jai Murlidhar Petroleum and amount payable as handling and transportation charges to the

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petitioner. It was the case of the respondent that after adjusting all these amounts,

the petitioner was liable to pay the sum of Rs.56,87,400/- to the respondent with interest.

10. Dispute arose between the parties. The respondent appointed the sole

arbitrator under the provisions of the agreement. On 18 th February, 2002 the respondent filed statement of claim before the learned arbitrator against the petitioner inter alia praying for the sum of Rs.56,87,400/- with interest at the rate

of 18% per annum w.e.f. 20th June, 2001 till realisation and cost. The petitioner

filed reply in the said proceedings and denied the said claim and also filed a counter claim. The petitioner in the said counter claim prayed for an order and

direction against the respondent to pay to the petitioner the amount of Rs.28,99,197/- with interest at the rate of 18% per annum from the date of alleged illegal adjustment and also prayed for cost.

11. Both the parties laid documentary as well as oral evidence before the learned arbitrator. By the impugned award dated 27 th July, 2011 the learned arbitrator allowed the claims made by the respondent and directed the petitioner to pay a sum

of Rs.56,87,400/- with interest at the rate of 8% per annum w.e.f. 20 th June, 2001 till realisation and directed the petitioner to pay the said amount within two months from the date of the said award failing which the petitioner was directed to pay

interest at the rate of 12% per annum to the respondent.

12. During the pendency of this arbitration proceedings the respondent also filed statement of claim against M/s.Jai Murlidhar Petroleum and its partners inter alia praying for payment of Rs.56,87,400/- with interest at the rate of 18% per annum

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with w.e.f. 5th April, 2000 till realisation and cost. The said arbitration proceedings

are still pending.

13. The parties led oral as well as documentary evidence before the learned arbitrator. Learned counsel for the petitioner invited my attention to some portion of oral evidence led by both the parties before the learned arbitrator. During the

course of arguments of this petition, the respondent produced statement of claim with annexures in respect of the arbitration proceedings filed by the respondent

against M/s. Jai Murlidhar Petroleum. Learned counsel for the petitioner invited my attention to some of the averments made in the said statement of claim filed by

the respondent against the said M/s. Jai Murlidhar Petroleum which arbitration proceedings are still pending. It is submitted by the learned counsel that since

the respondent herein has already filed a separate arbitration claim against the said M/s. Jai Murlidhar Petroleum in respect of the same subject matter and the said arbitration proceedings are still pending, the respondent could not have

proceeded with this arbitration proceedings before the learned arbitrator. Learned

arbitrator, therefore, ought to have decided issue no.1 i.e. "whether 4 parallel proceedings can be commenced and maintained against the respondent and M/s.

Jai Murlidhar Petroleum?" in favour of the petitioner herein.

14. Learned counsel for the petitioner submits that the officer of the respondent had issued oral instructions to the petitioner to sell and supply

lubricants to M/s. Jai Murlidhar Petroleum and based on such instructions, the petitioner had supplied such material on credit. It is submitted that the petitioner, therefore, did not commit any breach of clauses 8 & 9 of the agreement entered into between the parties. The provisions of the said agreement and in particular clauses 8 & 9 thereof were given a go-bye by the respondent

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themselves by issuing oral instructions to supply the quantity of such material

as desired by the said M/s.Jai Murlidhar Petroleum on credit. In support of this submission, learned counsel also invited my attention to the letter dated 16 th

February 2009 issued by SDM, RDO of the respondent which according to the learned counsel was dated 16th December 2009 and not 16th February 2009. It is submitted that even if the said letter is considered, the petitioner could not be

blamed for extending the credit to the said M/s. Jai Murlidhar Petroleum.

15. It is submitted that in any event, since the respondent had collected part payment from the said M/s. Jai Murlidhar Petroleum in respect of the same

transaction, it was proved beyond reasonable doubt that the respondent had waived their right, if any, to recover any amount from the petitioner herein in

respect of such transaction and only right, if any, was to recover such amount from M/s. Jai Murlidhar Petroleum in respect of which, the respondent had already filed arbitration proceedings which are still pending.

16. It is submitted by the learned counsel that the respondent could not have filed and pursued two parallel proceedings for recovery of the said amount

against two different parties. It is submitted that the learned arbitrator, however, did not consider this crucial aspect of the matter and has committed patent illegalities in the impugned award by allowing the claim of the respondent. In support of this submission, learned counsel placed reliance on the judgments of

the Supreme Court in the cases of Delhi Development Authority Vs. R.S. Sharma and Company, reported in (2008) 13 Supreme Court Cases 80, The Union of India Vs. Kishorilal Gupta and Bros., reported in AIR 1959 SC 1362, Dhirajlal Girdharilal Vs. Commissioner of Income Tax, Bombay, reported in AIR 1955 SC 271 and Oil and Natural Gas Corporation Ltd. Vs.

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Saw Pipes Ltd. decided on 17th April 2003 in Appeal (Civil) No.7419 of 2001.

17. Learned counsel for the respondent, on the other hand, invited my attention

to various clauses of the agreement entered into between the parties and led emphasis on clauses 8 & 9 of the said agreement. It is submitted that under clauses 8 & 9 of the said agreement, the petitioner was under an obligation to

supply lubricants only against demand draft in advance for the full value and in case of credit customers as advised by the respondent, the supply was

required to be made against post dated cheques upto the credit limit granted by the respondent. The petitioner was required to deposit such demand draft on

the same day or next day and post-dated cheques were required to be deposited on due date.

18. Learned counsel submits that the letter which is allegedly dated 16 th December 2009 issued by SDM/RDO of the respondent as claimed by the

petitioner herein was not dated 16 th December 2009 but was dated 16 th February

2009. Learned arbitrator had rightly dealt with the said letter as the letter dated 16th February 2009. It is submitted that even according to the said letter, the

respondent had made it clear that the petitioner shall deliver the products according to the requirements of the said M/s. Jai Murlidhar Petroleum and shall provide all discounts to them according to their eligibility i.e. spot discount, special incentives for February 1999 etc. and shall extend the credit to a party

according to his eligibility and requirement for 30-40 days on the post-dated cheque.

19. By letter dated 11th March 1999 of SEM/RDO of the respondent, it was informed that a credit limit of Rs.25,00,000/- was valid upto 31 st March 1999.

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It is submitted that there was no dispute that the payment of supplies made prior

to 31st March 1999 was already made. The petitioner could not produce any other documents in support of its plea that any further instructions were issued

by the respondent for extending the credit limit beyond Rs.25,00,000/- or for supply of lubricants beyond 31st March 1999. Learned counsel invited my attention to the oral evidence of the officer of the respondent in support of his

submission that in the cross-examination of the witness examined by the respondent, their depositions in the affidavit in lieu of examination-in-chief were

not shaken.

20.

It is submitted that scope of Section 34 of the said Arbitration Act is very limited. Learned arbitrator has rendered various findings of fact and has

interpreted the terms of contract and this Court thus cannot interfere with such findings of fact and cannot re-appreciate the evidence led before the learned arbitrator.

21. In so far as submission of learned counsel for the petitioner that two separate proceedings could not have been prosecuted i.e. one against the

petitioner herein and another against M/s. Jai Murlidhar Petroleum in respect of the same cause of action is concerned, it is submitted by the learned counsel for the respondent that under the terms and conditions of the agreement entered into between the petitioner and the respondent, the petitioner was liable to deposit the

amount to be recovered from the said M/s. Jai Murlidhar Petroleum in the account of the respondent. Though some of the amounts which were reflected in the account of the petitioner, were actually not deposited in the account of the respondent. It is submitted that thus, since M/s. Jai Murlidhar Petroleum being also one of the agents, the respondent took steps to recover the said amounts

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from M/s. Jai Murlidhar Petroleum so as to mitigate the loss.

22. It is submitted that though the respondent has filed separate arbitration

proceedings against the said M/s. Jai Murlidhar Petroleum and the same are pending, learned counsel, on instructions, states that the respondent would proceed with the said arbitration proceedings and in the event, the petitioner

herein pays the awarded sum to the respondent and in the event, the respondent succeeds in that arbitration proceedings and is able to recover any amount from

the said M/s. Jai Murlidhar Petroleum, the respondent would return the said amount to the petitioner herein.

23. Learned counsel for the petitioner in rejoinder submits that in view of the

respondent filing arbitration proceedings against the said M/s. Jai Murlidhar Petroleum in respect of the same claim, the respondent was estopped from making any claim and/or filing arbitration proceedings against the petitioner

herein.

Reasons and Conclusion :-

24. A perusal of clause 8 of the agreement entered into between the petitioner

and the respondent indicates that all sales ex-Godown were required to be made strictly against the payment by cheques/demand drafts. The divisional office of the respondent was entitled to advise the name of the customers with the

monetary limit upto which, the cheques could be accepted from the customers. The said clause further provides that supplies to other customers would be only against demand drafts in advance for full value. The petitioner was required to maintain the necessary customer cards indicating the receipt of money and the supply against them. Under clause 9 of the said agreement, the petitioner was

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under obligation to deposit all the cheques/demand drafts received during the

day in the account of the respondent herein with the State Bank of India on the same day or at the most next day. It is made clear under the said clause that

in no case there should be delay in depositing the cheques/demand drafts.

25. A perusal of the records indicates that on physical verification by the

officer of the respondent in the office and Godown of the petitioner, it was found that there was a shortage of 92 barrels from the total stock. It was found

from the record maintained by the petitioner that though cheques of various parties were not received by the petitioner in respect of supply effected including

the three supplies effected to M/s. Jai Murlidhar Petroleum during the period between 30th May 1997 and 10 th July 1999, the petitioner had shown that such

cheques of those five parties had been deposited in the account of the respondent with State Bank of India, Veraval. The respondent thereafter contacted State Bank of India, Veraval to enquire whether 3 cheques in the sum of Rs.22,91,684/-,

Rs.71,02,696.46 & Rs.16,92,817.10 dated 10th May 1999, 30th May 1999 & 10th

July 1999 respectively alleged to have been issued by M/s. Jai Murlidhar Petroleum had been credited in the collection account of the respondent and was

informed that no such amounts were deposited in the account of the respondent by the petitioner.

26. A perusal of the records indicates that there was further correspondence

exchanged between the petitioner, respondent herein and M/s. Jai Murlidhar Petroleum. The respondent was also taking steps to recover the said amount from M/s.Jai Murlidhar Petroleum. Since the supply was effected by the petitioner to M/s. Jai Murlidhar Petroleum and though the said M/s. Jai Murlidhar Petroleum had alleged to have issued the cheques which were alleged to have

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been deposited in the account of the respondent by the petitioner were in fact not

deposited, the respondent recovered a sum of Rs.25,00,000/- from the said M/s. Jai Murlidhar Petroleum.

27. In my view the records clearly indicates that there was no other instruction placed on record and/or proved by the petitioner that the credit limit of

Rs.25,00,000/- which was valid upto 31st March 1999 given in favour of M/s. Jai Murlidhar Petroleum was enhanced and/or extended beyond 31st March

1999. The learned arbitrator has considered the documentary as well as oral evidence on this issue. The witness Mr.Harsh Sachdeva and Mr.M.D. Kumar

examined by the respondent deposed that no advance payment from M/s. Jai Murlidhar Petroleum was received by RDO in respect of the lubricants supplied

by the petitioner to the said M/s. Jai Murlidhar Petroleum. The witness however deposed that there was no further telephonic instructions given to the petitioner to sell lubricants to M/s. Jai Murlidhar Petroleum against payment received by

RDO. The witness in the cross-examination deposed that there was a system of

receiving payments at one location and release of supplies from another location based on the fund transfer invoice. No such fund transfer invoice was

issued against payment received at Rajkot Divisional office for the lubricants sold in the months of March, April & May 1999.

28. Learned arbitrator after considering the oral evidence and the

correspondence rendered a finding that as per letter dated 11 th March 1999 of the respondent herein, credit limit in favour of M/s. Jai Murlidhar Petroleum was Rs.25,00,000/- valid upto 31st March 1999 and observed that the petitioner could not submit any other documents by which the respondent had extended the credit limit or validity period. The respondent vide their letter dated 6 th June 1999

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had advised all the supply points including the petitioner not to supply any

lubricant to M/s. Jai Murlidhar Petroleum on credit till further advice and by letter dated 28th February 2000, the Rajkot office and the petitioner were advised

not to make any release of lubricants of M/s.Jai Murlidhar Petroleum till further advice. Learned arbitrator has rendered a finding that the petitioner had failed to prove that the credit limit of Rs.25,00,000/- was extended by the respondent in

favour of M/s.Jai Murlidhar Petroleum beyond 31st March 1999 and also failed to prove that the letters dated 3rd April 1999, 6th May 1999 & 2nd June 1999

were served upon the respondent herein.

29.

A perusal of the record indicates that the petitioner could not prove before the arbitral tribunal that the respondent had permitted credit over and above Rs. 25

lacs and that also beyond 31st March, 1999 in favour of M/s.Jai Murlidhar Petroleum or that any instructions were given to the petitioner to sell lubricants on credit. The record indicates that the petitioner did not deposit the demand draft for

Rs.1,10,87,197/- for lubricants sold to the petitioner to M/s.Jai Murlidhar

Petroleum on 31st March 1999, 30th April 1999 and 31st May 1999 which the petitioner was liable to deposit in the account of the respondent.

30. The learned arbitrator in the impugned award has rendered a finding that the petitioner did not deposit the demand draft of Rs.1,10,87,197/- for the lubricants

sold to M/s.Jai Murlidhar Petroleum on 31st March 1999, 30th April 1999 and 31st May 1999. The witness examined by the petitioner in his cross examination had admitted that he did not dispute the description of three DCRs except the printout location of DCRs. The said witness also admitted that the supplies recorded in the said DCRs were made to M/s.Jai Murlidhar Petroleum. He further admitted that the respondent herein had not sent any written intimation/instructions to the

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petitioner to supply the goods under the DCRs to M/s.Jai Murlidhar Petroleum and

that they shall receive the cheque at Rajkot. The said witness also admitted that under the agreement it was the responsibility of the petitioner to recover the dues

against the supplies made.

31. The learned arbitrator has rendered a finding that the petitioner had thus

committed breaches of clause 8 of the agreement and was liable to indemnify the respondent as per clause 18 of the agreement. The learned arbitrator also rendered

a finding that since the petitioner did not make payment to the respondent, an effort was made by the respondent to recover the amount from M/s.Jai Murlidhar

Petroleum. The learned arbitrator has held that despite the admission of receipt of product by M/s.Jai Murlidhar Petroleum and making part payment and issuance of

post-dated cheques, petitioner herein is not discharged from its liability. In my view the findings rendered by the learned arbitrator are rendered after considering the entire documentary as well as oral evidence on record. None of these findings

are perverse and thus no interference is warranted with such findings of fact.

32. In so far as submission of the learned counsel for the petitioner that though

under clause 8 of the agreement the petitioner was not authorised to sell and deliver various material on credit beyond a particular limit, the petitioner was orally instructed by the officers of the respondent to deliver such material without

any limit and thus prohibition under the clauses 8 and 9 of the agreement were given a go-bye is concerned, in my view there is no substance in this submission of the learned counsel. The petitioner has failed to produce and/or prove these allegations though oral evidence was led by both the parties. The petitioner having sold and delivered the lubricants at their own risk and costs and contrary to the provisions of clauses 8 and 9 are liable to make payment to the respondent for such

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supply.

33. In so far as submission of the learned counsel that the letter addressed by the

SDM/RDM of the respondent purportedly dated 16th February, 2009 was actually dated 16th December 2009 is concerned, there is no merit in this submission of the

learned counsel. Both the parties proceeded on the premise and it was proved on record that the said letter was dated 16 th February 2009 and not dated 16th December 2009. There was no extension of limit beyond Rs. 25 lacs beyond 31 st

March 2009. All the supplies which were subject matter of claim were during the

period between when the said letter was addressed and much prior to 16 th December, 2009. The learned arbitrator has thus rightly considered the said letter

as 16th February, 2009 and not 16th December, 2009.

34. In so far as a submission of the learned counsel for the petitioner that the

respondent already having filed arbitration proceedings against M/s.Jai Murlidhar

Petroleum and made claims against the said party in the arbitration proceedings which are pending in respect of the same transactions and the respondent was thus estopped from pursing the parallel arbitration proceedings against the petitioner is

concerned, a perusal of the record indicates that the petitioner as well as M/s.Jai Murlidhar Petroleum both were liable to pay various amounts to the respondent. It is not in dispute that the price for sale of goods which was sought to be recovered

by the respondent from the petitioner in this arbitration proceedings were in respect of the goods sold and delivered by the petitioner to the said M/s.Jai Murlidhar Petroleum which the petitioner was required to deposit in the bank account of the respondent which the petitioner admittedly failed. Since the petitioner did not pay the said amount, the respondent took steps to recover the said amount from the said

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M/s.Jai Murlidhar Petroleum.

35. The learned counsel appearing for respondent on instruction has made a

statement that if the respondent recovers any amount from the said M/s.Jai Murlidhar Petroleum in the arbitration proceedings initiated by the respondent against the said M/s.Jai Murlidhar Petroleum, respondent would return the said

amount to the petitioner. In my view the learned arbitrator was right in rendering a finding that the other three proceedings were not the subject matter of the present

arbitration proceedings and it could not be decided by the learned arbitrator whether four parallel proceedings were maintainable or not. In my view the

learned arbitrator has rightly held that he had no jurisdiction to declare the other proceedings which were pending before another arbitrator as not maintainable and

that also against a party who was not party to this proceedings.

36. Learned counsel appearing for the petitioner invited my attention to some of

the averments made in the statements of claim filed by the respondent against M/s.Jai Murlidhar Petroleum and would contend that the respondent had waived their right to pursue this arbitration proceedings against the petitioner. In my view

this court cannot decide the issue whether arbitration proceedings filed by the respondent against a third party for recovery of the same amount would be maintainable in law or not. Merely because the respondent has filed separate

arbitration proceedings against M/s.Jai Murlidhar Petroleum, petitioner herein cannot be absolved from payment of their liability which is adjudicated upon and crystallized. This court cannot issue any directions to the learned arbitrator who is ceased of the proceedings filed by the respondent against M/s.Jai Murlidhar Petroleum.

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37. In so far as judgments of Supreme Court referred to and relied upon by the

learned counsel for the petitioner is concerned, there is no dispute about the statement of law declared by the Supreme Court in the aforesaid judgments. None

of the judgments relied upon by the petitioner however assist the petitioner in view of the facts and circumstances of this case.

38. In my view the learned arbitrator has also interpreted the clauses of the agreement and have allowed the claims made by the respondent which

interpretation in my view is not only a possible interpretation but is a correct

interpretation. Even if the interpretation of the learned arbitrator is a possible interpretation, this court cannot substitute such possible interpretation by another

interpretation which according to the court may also be another possible interpretation.

39. In my view the petition is devoid of merits and is accordingly dismissed.

There shall be no order as to costs.

[R.D. DHANUKA, J.]